Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30740

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JAMES ELLIS ASHFORD

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:08-CR-22

Before DAVIS, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Appellant James Ellis Ashford challenges the district court’s restitution

order imposed after he pled guilty to one count of a three count indictment

charging him with theft of government funds and a scheme to defraud the

United States via mail fraud. Finding no error, we AFFIRM the district court’s

restitution order.

Ashford was indicted for filing fraudulent claims for disaster relief with

the Federal Emergency Management Agency (“FEMA”) after Hurricane Katrina.

United States Court of Appeals

Fifth Circuit

F I L E D

July 2, 2009

Charles R. Fulbruge III

Clerk
No. 08-30740

 The indictment stated that the “exact dates [are] uncertain.” 1

2

Count 1 charged him with knowingly stealing more than $1,000 in federal funds

by claiming disaster assistance to which he was not entitled between September

14, 2005, and March 31, 2006. Counts 2 and 3 alleged a scheme to defraud the

federal government from on or about September 15, 2005, through December 10,

2005, via two instances of mail fraud. On the morning of a scheduled trial, 1

Ashford pled guilty to Count 2 of the indictment without a plea agreement. 

At sentencing, the district court ordered that Ashford pay $11,573.11 in

restitution, which included the value of the two FEMA checks and an additional

$7,215.11 in hotel bills that FEMA improperly paid for Ashford’s post-Katrina

housing. The hotel bills were not mentioned in the indictment, and they relate

to housing expenses from October 2005 through February 2006 – dates

exceeding in part the time alleged in Count 2 of the indictment. Ashford claims

that the restitution order should be limited to the $4,358 specifically mentioned

in the indictment, because some of the hotel expenses were incurred outside the

time frame alleged in Count 2.

The legality of a restitution order is reviewed de novo. United States v.

Adams, 363 F.3d 363, 365 (5th Cir. 2004). If the restitution order is found to be

permitted by law, the propriety of the particular restitution award is reviewed

for abuse of discretion. Id. Under the Mandatory Victims Restitution Act, 18

U.S.C. § 3663A (2000) (“MVRA”), a defendant is only responsible for paying

restitution for the conduct underlying the offense of conviction. United States

v. Wright, 496 F.3d 371, 381 (5th Cir. 2007). However, “[w]here a fraudulent

scheme is an element of the conviction, the court may award restitution for

actions pursuant to that scheme.” Id. (quoting United States v. Inman, 411 F.3d

591, 595 (5th Cir. 2005)) (internal quotation marks omitted). The restitution for

a scheme to defraud is limited to the specific temporal scope of the indictment.
No. 08-30740

3

Inman, 411 F.3d at 595. Because there is no written plea agreement in this case

and no plea terms are contained in the record, we must look to the actions

alleged in the charging document, rather than speculating upon the mutual

understanding of the parties, to determine the scope of Ashford’s fraudulent

scheme. See Adams, 363 F.3d at 366.

Ashford was charged with, and pled guilty to, devising and executing “a

scheme and artifice to defraud the United States and for obtaining money and

property by means of false and fraudulent pretenses, representations, and

promises[.]” To accomplish this crime, Ashford was specifically accused of (1)

filing a claim for $4,358 in emergency benefits from FEMA; (2) falsely stating

that his primary residence was damaged by a hurricane; and (3) committing two

instances of mail fraud corresponding to the checks he improperly obtained. We

conclude that the conduct that resulted in the receipt of $7,215.11 in hotel

payments falls within the temporal scope of this count of conviction. 

Ashford is correct that some of the hotel payments reimbursed expenses

incurred outside the time frame set forth in Count 2 of the indictment; however,

our analysis is not dependent upon the dates Ashford received the benefit of his

fraudulent conduct. We consider instead whether the hotel scheme itself was

part of the same course of wrongdoing as the acts of conviction and arose out of

the false statement regarding damage to his primary residence. See Wright, 496

F.3d at 382; see also United States v. Cothran, 302 F.3d 279, 289 & n.11 (5th Cir.

2002) (“Although we sometimes have struggled to define the outer bounds of a

particular fraudulent scheme, we have focused on the actions alleged in the

indictment and their temporal scope.”). The record is clear that Ashford

committed the same false and fraudulent pretenses, representations, and

promises that wrongly established his eligibility for the two emergency benefit

checks to also obtain improper payment for his hotel stay. In short, there was

but one scheme that led to Ashford’s conviction for Count 2, and the restitution
No. 08-30740

4

amount correctly reflected losses caused by that scheme. See United States v.

Stouffer, 986 F.2d 916, 928-29 (5th Cir. 1993). The only conduct resulting in

losses occurring after December 10, 2005 was Ashford’s continued residence in

the hotel; everything else, most notably the planning, preparation, and request

for reimbursement, occurred within the dates contained in the indictment. See

Wright, 496 F.3d at 382 (distinguishing Inman, 411 F.3d at 595). The district

court was correct to treat the $7,215.11 hotel reimbursement as a loss caused by

the offense of conviction, and appropriately included that amount in the

restitution ordered pursuant to the MVRA. Accordingly, we AFFIRM the

restitution order.